92 Decision Citation: BVA 92-21907
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-03 046 ) DATE
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THE ISSUES
1. Entitlement to an increased (compensable) rating for
postoperative residuals of a right inguinal hernia.
2. Entitlement to an increased (compensable) rating for
residuals of a tonsillectomy.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
Appellant and H. S. (appellant's brother-in-law)
ATTORNEY FOR THE BOARD
T. Sternad, Associate Counsel
INTRODUCTION
The appellant served on active duty from April 1943 to
November 1945.
This matter came before the Board of Veterans' Appeals
(hereinafter the Board) from a rating decision of July 1990
from the Montgomery, Alabama, Regional Office (hereinafter
RO). The notice of disagreement was received on July 25,
1991. By rating decision of August 1991 the noncompensable
evaluations for postoperative residuals of a right inguinal
hernia and residuals of a tonsillectomy were confirmed and
continued. The statement of the case was issued on August
23, 1991. The substantive appeal was received on September
4, 1991. A personal hearing was held before a hearing
officer at the RO on October 28, 1991. The noncompensable
evaluation for the residuals of a tonsillectomy was confirmed
by rating decision of November 1991. A supplemental state-
ment of the case was issued on December 26, 1991.
The appeal was received at the Board on March 20, 1992, and
docketed on March 23, 1992. The veteran is represented in
this appeal by the Disabled American Veterans. That
organization submitted additional written argument on
May 12, 1992. The case is now ready for appellate review.
We note that the veteran has raised issues concerning
medical malfeasance as a result of the actions of the
medical personnel at a Department of Veterans Affairs
(hereinafter VA) medical center. Those issues are not
inextricably intertwined with the issues on appeal and are
not addressed in this decision. The issues involving a
claim for medical malfeasance are referred to the RO for
proper adjudication.
REMAND
The veteran contends that there is a hole in his throat
where his tonsil was removed in 1945 which causes trouble
when swallowing and has resulted in his voice being hoarse.
He also indicated that he cannot do any jumping or heavy
lifting without pain due to the residuals of a right
inguinal herniorrhaphy in 1943.
We find that the veteran's claims are "well-grounded" within
the meaning of 38 U.S.C.A. § 5107 (West 1991). A well-
grounded claim is one which is plausible; that is, it is
meritorious on its own or capable of substantiation. Murphy
v. Derwinski, 1 Vet.App. 78 (1990). Such a claim need not
be conclusive, but only possible. Id. Once the veteran has
presented a well-grounded claim, the VA is statutorily
obligated to assist the veteran in developing the facts
pertinent to his claim. 38 U.S.C.A. § 5107. We find that
further development is necessary in this case.
By rating decision of May 1961, service connection was
established for a scar, postoperative right inguinal hernia,
and evaluated as noncompensable from February 6, 1961,
pursuant to Diagnostic Code 7338. Service connection also
was established for residuals of a tonsillectomy with a
small perforation of the left tonsillar pillar and evaluated
as noncompensable from February 6, 1961, pursuant to
Diagnostic Code 6599.
The most recent VA examination for disability evaluation of
the residuals of a right inguinal herniorrhaphy was
conducted in March 1961. The last VA examination for
disability evaluation of the residuals of a tonsillectomy
was conducted in July 1961.
We find that a VA examination for compensation and pension
purposes is necessary in order to adequately assess and
evaluate the current severity of the veteran's
service-connected residuals of a right inguinal
herniorrhaphy and residuals of a tonsillectomy.
Additionally, we observe that neither the statement of the
case nor the supplemental statement of the case provided to
the veteran and his representative contained the applicable
diagnostic code provisions of the VA Schedule for Rating
Disabilities, 38 C.F.R. Part 4. As such, the veteran has
not been apprised of the governing criteria applicable for
the assignment of a disability rating for either disability
at issue.
Accordingly, we REMAND this case for the following:
1. The RO should schedule a VA ear,
nose and throat examination to assess
the residuals of the service-connected
tonsillectomy, to include any problems
caused by the perforation in the left
tonsillar pillar. All indicated tests
and studies should be performed. The
examiner should be requested to opine
whether the veteran's hoarse voice is
related to the residuals of the
tonsillectomy.
2. The RO should schedule a VA examina-
tion to assess the residuals of a right
inguinal herniorrhaphy, including pain,
and specify whether the veteran has any
lifting restrictions or other functional
limitations. All indicated tests and
studies should be performed.
3. The RO should advise the veteran to
submit and/or identify any additional
evidence pertaining to treatment or
evaluation of the residuals of a right
inguinal herniorrhaphy and residuals of a
tonsillectomy.
After completion of the requested development, the agency of
original jurisdiction should review the case in light of the
additional evidence. If the decision remains adverse to the
veteran as to either issue, he and his representative should
be provided with an appropriate supplemental statement of
the case which includes the provisions of 38 C.F.R. Part 4,
§ 4.20, Diagnostic Codes 7338 and 65l6, 65l7, 65l9, and
6520, as appropriate The case should then be returned to
the Board for further appellate consideration. The purpose
of this REMAND is to assist the veteran in the development
of his claim, and no action is required of the veteran until
he receives further notice.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
URSULA R. POWELL PAUL M. SELFON, M.D.
LAWRENCE M. SULLIVAN
(CONTINUED ON NEXT PAGE)
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Veterans Appeals. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal. 57 Fed.
Reg. 4126 (1992) (to be codified as 38 C.F.R. § 20.1100(b)).